HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hilary Lafrance
Applicant
-and-
First Nations Information Governance Centre and Gail McDonald
Respondents
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Lafrance v. First Nations Information Governance Centre
WRITTEN SUBMISSIONS
Hilary Lafrance, Applicant
Morgan Rowe, Counsel
First Nations Information Governance Centre and Gail McDonald, Respondents
Noelle Caloren, Counsel
Introduction
1This Interim Decision explains why the Tribunal has jurisdiction to process this Application, which alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant worked for the corporate respondent as a bookkeeper from August of 2010 until the termination of her employment in July of 2014. She alleges that her disability was a factor in the decision to end her employment. The respondents have not yet been directed to file their Responses to the Application.
3The Tribunal invited submissions from the parties on the question of whether it has jurisdiction to deal with this Application. Federal undertakings fall outside the jurisdiction of this Tribunal.
4The Tribunal must decide whether the corporate respondent’s operations relate to matters that go to the vital or essential part of a federal undertaking or the core of a federal area of jurisdiction, making the Code inapplicable by virtue of the constitutional doctrine of interjurisdictional immunity.
5At issue here is whether the corporate respondent’s operations fall within federal jurisdiction as matters governed by ss.91(6) or 91(24) of the Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.). Under s.91(6) the federal government has exclusive legislative jurisdiction over “The Census and Statistics”, and under s.91(24) it has exclusive legislative jurisdiction over “Indians, and Land reserved for the Indians”.
6For the reasons which follow I conclude that corporate respondent’s operations do not fall within federal jurisdiction, the presumption of provincial jurisdiction over labour relations (and, by implication, human rights issues arising in the workplace) has not been ousted and the Tribunal can continue to deal with this Application.
Agreed facts
7The parties filed an agreed statement of facts which outlines the nature of the corporate respondent and its operations. The relevant facts are as follows:
First Nations Information and Governance Centre (“FNIGC”) is a federally-incorporated not-for-profit corporation;
It was created in 2010, but its origin stems from a decision by the federal government in the late 1990s to exclude First Nations people living on reserve from three major longitudinal population studies that are conducted by Statistics Canada. In response, the Assembly of First Nations and the National Aboriginal Health Organisation initiated a national First Nations Health Survey;
FNIGC was subsequently incorporated as an independent entity in order to collect health, social, economic, educational, cultural and employment information about First Nations peoples for the benefit of First Nations;
Its objectives, as set out in its Letters Patent, are:
To promote, protect and advance the First Nations principles of Ownership, Control, Access and Possession (OCAP);
To provide for the informational needs of First Nations by collecting, storing, analyzing, interpreting and returning results with the highest standards of data collection and protection;
To act as custodian and steward of First Nations’ data in a manner that is accountable and respectful of First Nations’ governance and processes;
To build research and information management capacity of First Nations, serve as a training centre, support knowledge transfer, and be the premier source of relevant, quality information and data on the holistic well-being of First Nations;
To support knowledge transfer on First Nations information governance.
The OCAP principles mean that First Nations control the data collection processes and own, protect and control the use of the information gathered through those processes;
FNIGC does not gather data. This is done by regional organisations affiliated with it. FNIGC analyses and stores data. It does not determine how the Assembly of First Nations or First Nations communities or organisations make use of the data or reports it produces;
FNIGC’s principal activities are the development and implementation of two major surveys: the First Nations Regional Health Survey (“RHS”) and the First Nations Regional Early Childhood, Education and Employment Survey (“FNREEES”);
FNIGC also runs a First Nations Data Centre which provides access to its unpublished data to approved applicants. It does this on a fee for use or cost-recovery basis. While it determines who may be given access to this data, it does not determine what use is made of the data by the people to whom it grants access. The sale or cost recovery of its data represents less than 3% of its revenue;
All of FNIGC’s core funding comes from two federal government departments: Health Canada and Aboriginal Affairs and Northern Development Canada;
Most of FNIGC’s employees work in an office in Ottawa. There is another office in Ontario on the reserve lands of the Mohawks of Akwesasne but no full-time employees work there.
the positions of the parties
8The applicant argues that the Tribunal has jurisdiction because the presumption in favour of provincial jurisdiction in labour and employment matters has not been displaced by evidence that shows FNIGC’s habitual activities bring it within an enumerated federal head of power.
9She says that the core business of FNIGC is to analyse, manage and store data. The fact that this is done almost wholly for the benefit of First Nations and is conducted in a manner that is culturally sensitive to First Nations needs does not change its essential character. She argues that it should be looked at like any other public or private sector enterprise that is focused on research and analysis of data.
10The applicant also maintains that both orders of government have legislative authority over statistics. Where the gathering of statistical information is local or private in nature the provinces have jurisdiction by virtue of s.92(16) (“Generally all Matters of a merely local or private Nature in the Province”). Otherwise, she says, all private data research enterprises (such as pollsters) would fall under federal jurisdiction and the provinces would have no authority to gather, analyse and store the data they use to inform the operational and policy-making functions of provincial governments.
11The respondents argue that because the data analysis and retention that FNIGC does is overwhelmingly used by First Nations organisations to inform their work (whether operational or policy-focused) its activities form part of First Nations governance. First Nations governance is a matter of federal jurisdiction by virtue of s.91(24).
12Further, they argue that s.91(6) gives the federal government exclusive jurisdiction over the Census and Statistics, and this brings FNIGC squarely within that head of power because all of its work is devoted to population surveys of First Nations which have a focus on health and social service needs.
analysis
13It is well settled that labour and employment relations are presumptively within provincial constitutional jurisdiction.
14In NIL/TU, O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”), the majority of the Supreme Court of Canada set out a test for determining whether that presumption is displaced and the labour relations of an employer fall within federal jurisdiction. The first step is to apply a functional test in order to determine whether the nature, operations and habitual activities of the employer are such that it is found to be a federal undertaking. If it is clearly the case that the employer is a federal undertaking then its labour relations will be federally regulated. The majority of the Court said that if the functional test is inconclusive, further examination is necessary to determine whether provincial regulation of the employer's labor relations "would impair the core of the federal head of power at issue” (NIL/TU,O at paragraph 18).
15In NIL/TU,O the Court found that an organisation providing child-welfare services to First Nations families and children did not fall within federal jurisdiction simply because the recipients of the services were First Nations people. Rather, it found that the organisation was one of many in a provincial network of organisations providing similar social welfare services. In other words, who receives the services provided by the employer is not determinative of the jurisdictional question. What matters is what those services are, how they are delivered and how the service delivery is administered and overseen.
16First Nations governance is integrally linked to the jurisdiction of the federal government. In NIL/TU,O the Court explained the federal government’s power to make laws for “Indians and lands reserved for Indians” as “matters that go to the status and rights of Indians. Where their status and rights are concerned, Indians are federal “persons”, regulated by federal law” (see para. 70 of NIL/TU,O).
FNIGC is Not Involved In First Nations Governance
17I do not accept the respondents’ assertion that the nature of FNIGC’s habitual activities is such as to justify a characterisation of its work as that of First Nations governance. Rather, its activities – while arguably supportive of First Nations governance – are a step removed from actual governance activities.
18First, in terms of its structure, FNIGC is a private, independent, not-for-profit corporation. It is not itself a First Nation community and is independent of the Assembly of First Nations.
19Second, it does not dictate or control what purposes its data is put to. In other words, it is not involved in the policy choices that flow from the use of its data. Those are choices made by First Nations communities who use the data in the actual implementation of First Nations governance. While those policy choices are matters of First Nations governance, the analysis of the data that ultimately informs those policy choices is not. In that regard the facts in this case are distinguishable from those decisions of the Tribunal which involve the actual delivery of services to First Nations, such as LeBlanc v. Nishnawbe Aski Nation, 2014 HRTO 1075; Velickovic v. Nokiiwin Tribal Council, 2014 HRTO 506, and Metat v. Mushkegowuk Council, 2013 HRTO 1877.
20All that FNIGC’s data analysis and retention does is support and facilitate First Nations governance through the provision of reliable statistical information. In that sense FNIGC is no differently situated than any public or private body that conducts specific-purpose data analysis. For these reasons I conclude that FNIGC’s habitual activities and operations cannot be characterised as First Nations governance, and its operations do not fall within s.91(24) of the Constitution Act, 1867 for the purposes of determining jurisdiction.
FNIGC’s Data Analysis Function Is Not Captured by s.91(6)
21By virtue of s.91(6) of the Constitution Act, 1867 the federal government has exclusive legislative jurisdiction over “The Census and Statistics”. However it does not follow from this that any and every data analysis activity falls within federal constitutional jurisdiction.
22I am unaware of any court or tribunal decisions which interpret the scope of s.91(6) for the purpose of determining constitutional jurisdiction. In the absence of guiding precedent, it is necessary to parse the language of s.91(6).
23The reference to “The Census” in s.91(6) is a reference to the decennial census conducted by the federal government and mandated by s. 8 of the Constitution Act, 1867. The reasons for this conclusion are, first, that the reference is to the census in the singular, and, second, that a reading of the Constitution Act, 1867 as a whole necessarily includes a reading of s.91(6) in conjunction with s.8.
24What is less clear is what is meant by “Statistics” in s.91(6). The decennial census is mandated to be carried out by Statistics Canada under the Statistics Act, R.S.C., 1985, c. S-19 (the “Act”). The duties of Statistics Canada are set out in s.3 of the Act as follows:
(a) to collect, compile, analyse, abstract and publish statistical information relating to the commercial, industrial, financial, social, economic and general activities and condition of the people;
(b) to collaborate with departments of government in the collection, compilation and publication of statistical information, including statistics derived from the activities of those departments;
(c) to take the census of population of Canada and the census of agriculture of Canada as provided in this Act;
(d) to promote the avoidance of duplication in the information collected by departments of government; and
(e) generally, to promote and develop integrated social and economic statistics pertaining to the whole of Canada and to each of the provinces thereof and to coordinate plans for the integration of those statistics.
25While it is obvious that an order of government cannot confer constitutional jurisdiction on itself through its own legislation, it is nonetheless useful to look at the scope of s.3 of the Act in order to try to understand and interpret the scope of s.91(6) in terms of the constitutional division of powers.
26As I read s.3, Statistics Canada is mandated to create and maintain a statistical picture that is national in scope – this is most evident in (e), cited above. However, there is nothing about that mandate that would prohibit provincial jurisdiction over statistics that are not national in scope or that pertain, in the words of s.92(16) of the Constitution Act, 1867, to “Matters of a merely local or private Nature in the Province”.
27Provinces have enacted their own legislation governing the collection and use of statistics in the province. Some provinces have dedicated statistical agencies. For example, British Columbia has established BC Stats as a government agency and Quebec’s Institut de la Statistique du Québec is also a government agency.
28In my view it is evident that, in terms of the constitutional division of powers, statistics or the gathering and analysis of data has a double aspect. It can fall either within s.91(6) and s. 92(16), depending on the scope and scale of the statistical enterprise at hand.
29In this case FNIGC is a private corporation engaged in data analysis in specific subject matter areas, namely the health and social welfare of First Nations people. A functional analysis of its nature and operations leads to the conclusion that it falls within provincial constitutional jurisdiction.
conclusion
30Applying the functional test required by NIL/TU,O, I find that the operations of the corporate respondent do not fall within federal constitutional jurisdiction. As a result the Application can proceed in the Tribunal’s process.
order
31The Application can proceed in the Tribunal’s process. The respondents are directed to file their Responses within 35 days of the date of this Interim Decision.
Dated at Toronto, this 29th day of December, 2014.
“Signed by”
Paul Aterman
Vice-chair